USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1590
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS JULIO RODRIGUEZ
aka Jose Ramirez,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
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Coffin, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________

Eileen M. Donoghue, by Appointment of the Court, for appellant.

__________________
Robert E. Richardson, Assistant United States Attorney, with w

____________________
Donald K. Stern, United States Attorney, was on brief for appellee.
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____________________
June 17, 1994
____________________

COFFIN,

Senior Circuit Judge.

______________________

appeals his sentence

for illegal reentry into

after deportation, 8 U.S.C.

I.

1326.

Boston to

Colombia.

reentered the United

agents

from the

acting

on

Chelsea,

a tip,

the United States

a Colombian citizen, was deported

The

Immigration and

Massachusetts.

Rodriguez

We affirm.

following September,

States illegally.

found

Julio

Factual Background
__________________

In April 1991, Rodriguez,

from

Carlos

December 19,

Naturalization Service

and arrested
A

On

Rodriguez

federal

Rodriguez
grand

jury

at

1991,

(INS),

a bar

in

subsequently

returned

one

count

violation of 8 U.S.C.

indictment

charging

Rodriguez

with

1326(a) and (b)(2).1

On November 4, 1992, Rodriguez pled guilty to a violation of

8

U.S.C.

1326(a).2

Rodriguez'

presentence

report

(PSR)

computed his total offense level at 21: 8 points were assigned as

the base

offense level

under 8

U.S.C.

1326, 16

points were

added for his previous conviction for an aggravated felony, and 3

____________________

1This statute provides, in pertinent part, that:

(a) [A]ny alien who -(1) has been arrested and deported or excluded and deported,
and thereafter
(2) enters, attempts to enter, or is at any time found in,
the United States . . . [and]
(b)(2) whose deportation was subsequent to a conviction for
commission of an aggravated felony, such alien shall be
fined under such Title, imprisoned not more than 15 years,
or both.

2At his plea hearing, the court accepted the parties'

stipulation to consider Section (b)(2) as a sentencing factor,
and not as an element of the offense.
We have since affirmed
this view. See United States v. Forbes, 16 F.3d 1294, 1300 (1st
___ _____________
______
Cir. 1994) (holding that Section (b)(2) is a sentence enhancement
factor).
-2-

points

were

subtracted

timely notifying

for acceptance

authorities of

of

responsibility

his intention to

and

plead guilty.

See U.S.S.G.
___
with

2L1.2(a),

criminal

resulted

in

(b)(2); 3E1.1(b)(2).

history

category

recommended

of

III,

sentencing range

Taken together
this
of

calculation
46-57

months

imprisonment and 24-36 months supervised release.

The district
that

court accepted the PSR recommendation, finding

Rodriguez' two

convictions for

possession with

intent to

distribute an illegal drug, in violation of Mass. Gen. L. ch. 94C

32A, were "aggravated felonies" within the meaning of
1326(b)(2).

The

court also

ruled

that Rodriguez'

offense

occurred when he was found in the United States in December 1991,

and, therefore, that application
to

of the November 1991 amendments

the Sentencing Guidelines did

clause

of the

Constitution.

Rodriguez to 48

not violate the

Accordingly, the

months imprisonment,

supervised release.

followed by

ex post facto
__ ____ _____

court sentenced
24 months

This appeal followed.

Rodriguez contends

that his Massachusetts'

convictions are

not "aggravated" felonies within the meaning of federal law,

that
his

of

and

the district court therefore erred by using them to enhance

base offense

level by

16 points.

He also

reiterates his

claim that the application of the November 1991 Guidelines to his

conviction

violates the ex post facto clause, and that he should

__ ____ _____

have been sentenced under

the Guidelines in effect in

1991, the date of his reentry into the United States.

-3-

September

II.

Aggravated Felony Determination

_______________________________

Section 1326(b)(2) provides an enhanced penalty for deported

aliens

who

conviction
drug

illegally

reenter

the

for an aggravated felony.

offense

is

an

United

States

following

Our cases establish that a

aggravated felony

within

the

meaning of

Section 1326 and the applicable Sentencing Guidelines, U.S.S.G.

2L1.2(b)(2), if it is a "drug trafficking crime" as defined in 18

U.S.C.

924(c)(2).

See United States v. Forbes,

___ _____________
______

16 F.3d 1294,

1301 (1st Cir. 1994); Amaral v. I.N.S., 977 F.2d 33, 35 (1st Cir.
______
______
1992).

Under

crime" if it is

that section, a drug felony is a "drug trafficking

punishable under any one of three

the Controlled Substances

Act, 21 U.S.C.

Controlled Substances Import and

seq.;

or

U.S.C.

(3) the

Maritime Drug

801

statutes: (1)

et seq.; (2) the

Export Act, 21 U.S.C.

Law

Enforcement Act,

951 et

46 App.

1901 et seq.

Rodriguez

argues

that

his

state

convictions

are

not

aggravated felonies, and therefore

not subject to enhancement as

such,

"trafficking" crimes.

because

they are

argument is meritless.

not

for

Rodriguez' Massachusetts convictions

This

are

trafficking crimes for purposes of

punishable

Section 1326 because they are

under the Controlled Substances Act.

844(a) (punishing simple possession

See 21 U.S.C.
___

of controlled substances).3

____________________

3Rodriguez also contends that his convictions are not

trafficking crimes under state law.
This argument misses the
mark. We have held that federal, not state, definitions govern
under the Guidelines. United States v. Unger, 915 F.2d 759, 762_____________
_____
63 (1st Cir. 1990); United States v. Aymelek, 926 F.2d 64, 71-2
_____________
_______
(1st Cir. 1991).
-4-

See
___
which

Forbes, 16
______
would

F.3d

1294, 1301

be felonies

under 21

aggravated felonies under U.S.S.G.

Rodriguez
virtually
thus

argues that

all predicate

this

drug

rendering meaningless,

(state possession
U.S.C.

convictions

844(a)

treated as

2L1.2(b)(2)).
conclusion

crimes into

unfairly

converts

aggravated felonies,

for drug offenses,

the distinction

under Section 1326 and the applicable Guidelines between felonies

and

aggravated felonies.

"aggravated felony" may be

We recognize that

this definition of

rather harsh for drug offenders.

are not at liberty, however, to rewrite the statutory scheme.

We

We therefore conclude that the district court properly added

16

points to

Rodriguez'

base offense

level

in computing

his

sentence under the Guidelines.

III.

Ex Post Facto Claim

___________________

Rodriguez illegally reentered the United States on September

5,

1991.

At that

time,

the

relevant Sentencing

provided for a base offense level of 8, a

the

defendant

previously

conviction for a felony,"

was

4-level increase "[i]f

deported

U.S.S.G.

Guidelines

after

sustaining

2L1.2 (Nov. 1990),

and, if

the conviction was for an aggravated felony, "an upward departure

may be warranted."

Id., comment (n.3).

___

Rodriguez was not found in the United States, however, until

December 19, 1991.

Between the time of his entry and the time of

his arrest, the Guidelines

for a

conviction under

conviction

for an

were amended to increase the

Section 1326 where

aggravated

felony.

penalty

deportation followed

U.S.S.G.

2L1.2(b)(2)

-5-

(Nov.

1991).

converted

the

These

amendments,

discretionary

effective

choice

whether

November 1,
to

increase

1991,

the

penalty

for

instructing

this

class

the court

of

to add

their total offense level.

Rodriguez
sentenced

him

defendants

argues

16 points

a requirement,

to the

by

calculation of

Id.
___

that

under the

to

the

district

Guidelines in

court

should

effect on

have

September 5,

1991, the date he entered the United States, because that is when
he violated

Section 1326.

The district court's

application of

the November 1991 Guidelines violates the ex post facto clause of

__ ____ _____
the Constitution, he claims,

because the amendments increase the

sentence applicable at the time he committed the crime.

The government counters that 8 U.S.C.
three
offense

1326(a)(2) describes

separate occasions on which a deported alien can commit an

under the statute: when

he or she

(1) illegally enters

the United States;

(2) attempts

illegally to

States;

found in the

United States.

or (3) is

that the indictment explicitly

enter the

United

They point out

charged Rodriguez, and he pleaded

guilty to, having been found in the United States on December 19,
_____

1991, over a month and a half after the November 1991 Guidelines'
amendments.4

Application

of

these

amendments

to

Rodriguez'

____________________

4Alternatively,
the government
urges
this court
to
characterize Section 1326(a) as a continuing offense.
Other
courts, in
discussing the application of
the statute of
limitations, have come to differing conclusions regarding whether
this statute describes a continuing offense.
Compare, e.g.,
_______
____
United States v. DiSantillo, 615 F.2d 128, 132-37 (3d Cir. 1980)
______________
__________
(crime of illegal entry through recognized Immigration and
Naturalization port of entry after being arrested and deported

not a continuing

offense, so

as to toll

applicable statute

of

-6-

offense,

they contend,

therefore does not

violate the

ex post
__ ____

facto clause.
_____
Barring any
should

ex post facto concerns,

__ ____ _____

be sentenced according to the Guidelines in effect at the

time of sentencing.
Harotunian,
__________

18

920 F.2d

post facto
____ _____

clause of

application of the

U.S.C.

3553(a)(4);

1040, 1041-42

when a guideline amendment

ex
__

a defendant ordinarily

United States
_____________

(1st Cir. 1990).

However,

increases the punishment imposed, the

the Constitution

prevents retroactive

guideline to offenses committed

effective date of the amendment.

prior to the

In such a case, the

guideline

in effect at the time the crime was committed must be used.

U.S. Const. art. I,
14, 522-23 (D.C.
the

9,

v.

See
___

cl.3; United States v. Molina, 952 F.2d

_____________
______

Cir. 1992).

November 1991 Guidelines

Determining whether application of

violated the ex
__

post facto clause

____ _____

requires us

to decide when Rodriguez committed the offense: when

he crossed the

border on September 1991, or when

he was caught,

on December 19, 1991?

As the Supreme Court has
section of

stated in interpreting a different

the Immigration and Nationality Act

cardinal principle of
to destroy.'

It is

of 1952, "`[t]he

statutory construction is to
our duty `to

give effect, if

every clause and word of a statute.'"

save and not

possible, to

United States v. Menasche,

_____________
________

____________________
limitations for as

long as

alien remains in

the country)

with
____
Mo. 1975)

United States v. Bruno, 328 F. Supp. 815, 825 (D.

______________
_____
(criminal conduct of being found in the United States after
having been excluded and deported continues so long as alien is
present in the United States).
Because we conclude that Section 1326(a) describes three
separate offenses, we need not reach this issue.
-7-

348 U.S.

528, 538-39 (1955) (citations omitted).

principle, we think it plain

and "is at any

"found

that "enters," "attempts to enter,"

time found in" describe three

on which a deported

Applying this

distinct occasions

alien can violate Section 1326.

in" otherwise would

be surplusage,

because it

The phrase

would be

redundant with "enters."

Accord
______

F.2d 38, 41-43

1993); United States

_____________

F.2d 16, 18

(2d Cir.

United States v. Whittaker, 999

_____________
_________

(5th Cir. 1993); United States

_____________

v. Gonzales,
________

988

v. Alvarez-Quintero,
________________

788 F. Supp. 132, 133-34 (D.R.I. 1992).

This construction is consistent with the legislative history

discussed in
(3d

Cir.

Congress

United States v.
_____________

1980).

In

reenacted

DiSantillo,
__________

the statute

"found," but did not

statute to include the

official

the

in

it

128, 134-35

noted that

when

added

term

Id. at 135.
___

In so doing,

crime committed when an alien

which the INS

enters the

would have

no

entry or

attempted entry through regular immigration procedures.

There is

The

other apparent reason for

the crimes

the

committed by

no

well as

the

must have intended to broaden

surreptitiously, of

record, as

court

1952,

remove "enters."

the court concluded, Congress

United States

DiSantillo, 615 F.2d

__________

retaining the word

"enters."

Id.
___

court was persuaded that the amendment was aimed at ensuring

that aliens

who

were

country

nevertheless

whenever

they were

Jimenez,
_______

943

not apprehended
could

found.

F.2d 1284,

DiSantillo in concluding
__________

as

be prosecuted
See also
___ ____

1286-89

they
for

unlawful

United States
_____________

(11th

Cir. 1991)

that an alien who had

-8-

reentered

the

entry

v. Canals_______

(following

sought admission

through

recognized

physically "in"

immigration

port

the country, could

"found in" clause, because

of entry,

and

thus

not be prosecuted

was

under the

that clause was intended to

apply to

aliens who have entered surreptitiously).

In this

case,

regardless of

States, Rodriguez violated the

on December

19, 1991, and he

"found

the

in"

application

United

of the

he entered

the

United

statute when he was "found"

pled guilty to the

States

November

when

at

that

time.

1991 Guidelines

here

crime of being

Accordingly,

in computing

offense level does not violate the ex post facto clause.

__ ____ _____

The decision of the district court is therefore AFFIRMED.

________________________________________________________

his

-9-